Justice Department’s Jonathan Kanter on antitrust enforcement and power of Big Tech

e e e e e e e e e e e e e e e e e e e e e e e e e e e e e the Department of Justice has an enduring Legacy of taking on the biggest and toughest monopolies in history this includes historic cases against Standard Oil AT&T and [Music] Microsoft we have a system of laws that say competition is what should result in benefits to Consumers competition is what should result in benefits to entrepreneurs we just want to make sure that there is an open Fair playing field for all competitors including [Music] apple good afternoon and welcome to Washington Post Live I'm Kat zakreski National Tech policy reporter here at the Washington Post and I'm joined today by Jonathan caner the Assistant Attorney General for antitrust at the Department of Justice Jonathan thank you so much for being here with us today at post live thank you Kat it's wonderful to be with you well thank you and we want to dive right into the news today because doj has a big announcement for decades there's been concern about consolidation in the healthcare industry something you raised in a recent speech can you tell us a little bit about what doj is doing to address this yes today we are making an important announcement regarding our healthc care enforcement uh program we are announcing today a new task force to take on healthc care monopolies and collusion uh we're calling it the uh HCMC and the purpose of this task force is to ensure that we are taking a whole of division approach as well as a whole of government approach to ensure that we hold monopolies and Bad actors accountable uh for violations of the antitrust laws in the health care space there are three animating principles um first and this is extremely important uh Healthcare in a post-industrial economy is different than it used to be um no longer do we just have markets where you have separate lines of Commerce with you know doctors or a hospital or insurance company um today we have experience we experience healthc care as platforms the platformization of healthc care has resulted in multi-sided Giants intermediaries uh that have uh a um a coordinated stack of businesses that flow together including payers including providers including pbms claims um processing Banks um these are multi-sided giants that are accumulating assets at an alarming rate uh and are becoming the new intermediaries and Gatekeepers of our Health Care system and it's really important that we adjust uh to Market realities and make sure that we have the not only the resources devoted to addressing these concerns but have the expertise devot voted second um we need to think about all of the resources and tools that we have available um and so the anit trust division for example we have an important and effective civil an um merger program we have a monopolization program we have criminal antitrust enforcement against cartels and collusion we have a deep bench of experts including economists and data scientists we need to bring all of these resources to Bear to ensure that we're addressing the market realities as they exist today finally we need to have strong policy and a strong policy voice uh the Biden Administration has pioneered a whole of government approach to antitrust enforcement this means working across agencies throughout the government to ensure that we are coordinating to bring all the competition tools to Bear uh in in in throughout the United States federal government uh and we are doing that through the executive order from the Biden Administration and in particular our focus on healthc care and so today's announcement um uh essentially explains that we are upping our game we're going to elevate our the importance of healthcare antitrust enforcement uh it is among our highest priorities because this is not just about dollars and cense healthc Care is not just about um um uh making uh money it's about lives um when you ask people what keeps them up at night affording Health Care is too often at the top of the list making sure that doctors have the ability to provide the quality and level of care necessary um to take care of our loved ones these are real issues that affect real people and uh we are organiz organizing ourselves to make sure we can meet that moment and you talked a little bit about this moment and the platformization of healthcare but can you tell us a little bit more about why now why in May 2024 the doj is taking this Focus so so we have to learn and we have to grow as as an agency and so uh one of the things that we have done uh we do extremely well at the anti trust division is we understand markets we understand how markets function and so that means when Market realities start to shift we need to make sure that we are adapting to reflect those Market realities and so when I say the platformization of healthcare what I mean is that you have these massive intermediaries that are effectively multi-sided markets um they are are on one end um intermediating uh doctors and health care providers and nurses we're moving uh to a world where um uh Physicians and are no longer small business owners uh but they're becoming employees of companies that also own health insurance companies um we're seeing the role of pbms who interact with pharmaceutical Giants we're seeing uh healthcare insurance companies buying up in an EXT extraordinary clip um actual healthc care provider doctors uh groups Physicians groups Emergency Room Physicians nursing groups this is um this is changing the landscape of healthc care and all of this is being done against the backdrop of a rich ecosystem of data that is used to increasingly make algorithmic decisions about the course of care uh and billing and so um we have um been dealing with a healthcare issues at the ni trust division um for over a century and so the idea of taking on Healthcare Giants is not new uh but what is new is the post-industrial um economy for healthcare is Shifting and it's shifting right beneath our feet and so we believe it's important to adapt in real time and some of that strategy that you just laid out of companies buying up these businesses doing this kind of vertical integration of buying up other companies in the same sector it brings to United Health which my co my colleagues just did a story on and I wanted to ask you I mean since the Cyber attack some lawmakers have raised concern that the size and scope of that company represents a national security threat do you agree so I can't talk about specific companies or specific investigations but I do you know want to say more generally that uh monopolies and concentration of power don't just create risks to consumers in terms of higher prices or in the case of healthcare um um more expensive health care and and access to life-saving treatments and medicines but it is a resiliency risk um our ability to succeed as a country our ability to take care of our people and and our loved ones depends on having a a Health Care system that is accessible and that's affordable um and when when certain large entities are controlling so much uh of our Healthcare decision-making uh our healthc care um system whether it's at the insurance level or at the doctor level uh or the or the provider level um or the data level um it creates um often um sitting ducks for cyber risk and it can often create um uh massive um risk of failure uh Central points of failure and it can also create um very um uh strong in uh strong entities with deep incentives uh to put profits ahead of people and so whatever that compan that company is or those companies are it's important that we um follow the facts in the law to ensure that we are addressing monopolization as um um when we see it and when we believe that the anti trust laws support action and given these challenges that we're seeing in healthc care today you've mentioned a few times insurers buying up physician practices under current antitrust law do you have the tools you need to address and at times stop those types of deals so we are a law enforcement agency our job is to use the tools that Congress provides us uh the uh Congress in its wisdom going back to 1890 and then again in 1914 with The Clayton Act and then multiple times thereafter wrote antitrust laws um that are designed to ensure that our economic Liberty is protected from concentration of power and uh legal monopolization and so those tools are very powerful and they're very effective uh and we need to use them to their fullest effect when the facts and the law Demand Action so the short answer is I do believe that the antitrust laws as they exist today are certainly essential to ensuring the economic freedom uh uh for all aspects of our economy including Healthcare um obviously Congress has the right at any time and should exercise its its judgment and wisdom to clarify the antitrust laws or um or or amend them but as we sit here right now I think there is a a rich um history of antitrust law enforcement that deals with exactly the kinds of problems that we're talking about we're talking about gatekeeper monopolies platform monopolies uh we're talking about uh a consolidation of of intermediaries and choke points that can um increase the power that small number of companies have over the lives of everybody and I think that is certainly well with within the Ambit of the antitrust laws and um we will take action when appropriate and I want to turn now to some of the Active cases that that the doj has um we recently saw closing arguments in the Google search Anti-Trust case one of the most consequential cases that the US government has brought against the tech industry um I wanted to ask you if the judge were to rule in doj's favor would you pursue a breakup of Google yeah so again I can't talk about specific companies or specific cases I will mention just briefly that I'm extraordinarily proud of the team at the antitrust division at the Department of Justice who litigated that case uh professionally and um with great skill and um obviously we have you know deep respect and um deference to the to the judicial system and will allow that process to play itself out more broadly not speaking in context of any single case I think remedies are are a challenging question when you're dealing with large scale monopolies that have massive control over so many parts of our lives and um I do think it underscores the importance of making sure that we're addressing those problems before they get um uh uh uh ma so massive that it requires um extraordinarily invasive relief I've said before that all options have to be on the table with respect to anti- trust enforcement and if so so if we have a um um Monopoly where uh that has conflicts of interest or where um the the remedies to control or regulate their behavior would be so difficult to implement then we have to pursue structural remedies which have been traditionally particularly in the merger case the most common form of antitrust remedy but each case needs to be looked at on some merits and I wanted to ask you I mean you mentioned how proud you are the litigation team in this context this is you know one of the first of many Tech cases that has gone to trial are there any lessons that you've learned from this experience that might shape how you pursue litigation in future Tech cases we're always learning and we're always adapting I think we need the humility to make sure that um uh we are are constantly striving to make ourselves more effective um I think we team did an incredible job and I think we uh learned a lot from that process just as we do in any case um I think there's some interesting um things that I would point out first is you know we have built um and we have a state-of-the-art litigation team here at the antitrust division uh that's something we've invested heavily in through our time uh over the last two and a half years um the that includes the existing staff here at the anit trust division we have the most talented antitrust lawyers in the world including um many lawyers with Rich and deep trial experience we've added to that bench uh by bringing on almost 25 first chair trial lawyers these are experienced trial lawyers who have tried dozens if not hundreds of cases uh who have um litigated uh criminal and civil cases many of whom have been um in other parts of the Department of Justice including us attorney's offices we also understand that um facts are really important and Market realities are really important and in our cases just as we have recently um thinking about um how we put on Witnesses but also how we consider expertise for example we continue to rely as we should uh and will on certain kinds of economists and IO economists but we're no longer limiting our expertise just to a narrow range of um of experts and so as our cases increasingly involve deep technological questions consumer behavior um uh we are looking to behavioral scientists we're looking to Industry experts we're looking across the Continuum to make sure that we can not only understand how these Technologies work and how people respond in the real world um to to conduct but also making sure that we are developing a stable of experts and expertise so that we can explain that uh in in an accessible fashion to courts and I wanted to also ask you a bit about the Apple case which obviously you brought earlier this year that case really you know you know takes aim at the iPhone ecosystem and so for users if you were to win this case how do you think our iPhones would change yeah so you know those are those are um questions that ultimately will be litigated before court and so I'll defer to a court um uh with respect to uh one liability and and uh if if appropriate remedies but I think remedies need to be focused on competition uh focus on preserving a competitive economy so that consumers can get the benefit of lower prices including devices so that consumers can get the benefit of lower prices and more Innovation with respect to apps and services so that entrepreneurs and developers can have access to an ecosystem of users at a way in a in a manner that's affordable uh and so that there's choice so that they're more than um that we don't have Monopoly choke points over distribution platforms that are critical to not only the free flow of information and ideas but to uh how we function in our daily lives and so um those are important values that we seek not only to preserve uh in any antitrust case that we bring or in any remedy that we pursue uh but we actually believe that competition can make that better um I think one of the beautiful aspects of our country is that we have a competitive market-based economy and when companies are competing in a full throated way it's a wonderful thing it leads to uh innovations that we couldn't possibly imagine sitting here right now uh it leads to things that were once expensive becoming affordable and accessible uh and it leads to a diversity of viewpoints and ideas which is the Beating Heart of a of a democracy where we depend on free speech and access to information and so those are values that go at the heart of all of our cases and certainly all of any remedy that we would pursue in any of our litigation matters and you mentioned we need to see what a Court decides obviously that takes quite some time in these cases we're looking at an election year none of us know what the outcome of that election will be and whether you will have this job a year from now how are you thinking about that and where these cases go if Biden does not win reelection so um yeah I have the luxury of of being um uh an Anti-Trust lawyer enforcer who gets to sit in the office keep the head down work with an incredi talented group of people and so my focus is on what what are the cases that we have now what are the investigations we have now how can we um uh make sure to to manage those in a way that's efficient effective and accurate uh and then I'll leave uh things outside of my control to others but does that mean the companies can just kind of play a waiting game in this instance I mean the Biden Administration has taken this very offensive posture against the tech industry indry is it a matter of just waiting out the clock in these cases uh for either you know your successor to not continue them or for a court to block them that's those strategies are up to companies I think um waiting um would be at their own Peril uh at the end of the day we're not going to wait we're going to bring cases when we believe it's the right thing to do and we're going to move to bring cases to litigation as quickly as we can so that we hold um companies that we believe are engaging in doing accountable and that's that's all we can do um but I will point out that the the movement toward more uh Stronger more effective antitrust enforcement is not something that neatly sits uh in any one area of the political Continuum one of the things that has been remarkable to me is that there is Broad public support uh and Broad um support across all aspects of the political Spectrum um for the work that we're doing and I I think that deep appreciation for why we want a competitive economy diversity of viewpoints and ideas why we need um the ability of for example Farmers to get a reasonable return on investment for their livestock why we need uh affordable Access to Health Care uh why we need a supply chain that is resilient and um and the ability for entrepreneurers across the country to invest all of that is front and center for us and um and it's also front and seter for the public and so I think we have reached a turning point uh in Anti-Trust enforcement not because we as enforcers not just because we as enforcers believe it's important but because the public is demanding it given that public demand how do you explain the funding cuts that we've seen from Congress to the antitrust divisions budget yeah so um again uh we we we are we have been tradition Ally underresourced um over the last 30 or 40 years sitting here today we have far fewer people than we did in 1979 um but um I would never count out the antitrust division this is a group of an extraordinary um uh people professionals uh who regularly punch above their weight uh I am pleased that Congress has provided us with additional funding since I started and so uh relatively speaking We are continuing to grow and our funding is uh moving in an upward um at an upward trajectory I've said before publicly and that uh it is important that we are adequately funded we often have in any single investigation uh more lawyers on the other side of just one investigation than we often have at the entire Anti-Trust division um so we're not intimidated we will fight um for the uh uh for the public uh and we will do so in a way that I think um uh will be successful when we pick our battles we will we will fight to win them um because we believe uh enforcement is is good not just for the Public's um wallet but for for our Democratic Values uh and ideals but but um you know ultimately Congress needs to make its judgment about funding and we defer to that we appreciate the the money that uh Congress is willing to provide us to support the work we're doing and uh we will continue to keep at it and just on this question of resources timing I wanted to ask you a little bit about what we're seeing right now with the Google case um as we're in the closing Arguments for Google we're also seeing Google Push into what they're calling sge a generative search experience and moving into Ai and and really changing the way we search online and it raises the question can these cases move quickly enough when the technology at these companies is changing so rapidly before our eyes the short answer is I do think they can I think um It's Our obligation to make sure that we are moving quickly to address these issues as as close to real time as possible but I also think the principle of antitrust enforcement goes a long way the fact that we are litigating cases uh at a rate that we haven't seen in generation in Generations uh is itself uh important um so until and it was the previous administration that brought the Google case that we just or at least filed the Google case that we just litigated um that was um uh that that was the first real section two monopolization case that the Department of Justice had brought since it filed USB Microsoft in 1998 or thereabouts uh we've seen almost none uh during that period um and that's a I think a startling um fact it means that um a whole area of antitrust enforcement had largely gone ignored and um but not anymore now we are bringing we have more active um monopolization cases right now both civil and criminal um then total over the last 20 plus years and and that number you know continues to to grow and our sophistication in bringing those cases continues to um expand and so I think the more we uh bring cases the more we will induce clients the more we will um generate remedies I think it's also important to recognize that antitrust cases um focus on forward-looking remedies and so whatever the case might be um this is a principle that was established in the USV Microsoft case the remedies have to um address competition as we find it today not as we may have found it at the time that the uh anti-competitive conduct started and so we need to look forward and make sure that uh competition is protected um not just to uh remedy um destruction of uh nent competitive threats or emerging competitive threats in the past but to preserve the ability of those emerging competitive threats to have their full-blown effect and so I mean in the case of Google we're looking at the investigation started more than five years ago the Trump Administration brings the case in 2020 it goes to trial last year we get a decision sometimes this year it's it's quite a long process in Europe we've seen the recognition that they need more specific competition laws to deal with these types of tech threats that move very quickly I mean do you think the US needs to reconsider whether there's whether it needs new antitrust laws to specifically address the tech sector given these time and constraints yeah so there have been a number of proposals over the years including um a bill authored by Senator cloar that we were Vo in our support of at the Department of Justice and uh but ultimately that's the prerogative of Congress um I think if it wisdom wants to clarify the antitrust laws or expand the scope and reach um that very well may be a a good idea and welcomed um by us but but ultimately that's a decision that is left to Congress we here at the anit trust division um can offer technical assistance and in the case of for example that legislation offered off FR throated support um but um when and until there's there are new laws our Our obligation is to enforce the laws that we have today and I do think that they can be effective even if um there are opportunities for improvement and I think what you hopefully have notic in our cases is that we are not just bringing more of them but um number of our cases are going to trial faster than they used to and so for example we have a case another large Tech case that was filed in January 2023 that's scheduled for f uh for L uh for trial in front of a jury in September uh 24 which is a very fast turnaround and I want to turn gears now to artificial intelligence because you just announced a new workshop on competition and artificial intelligence and so can you tell me a little bit about what are your biggest concerns when it comes to competition in this Emerging Market yes so I think there are a number of Dimensions that we have to think about as enforcers um first and foremost to make sure we understand the technology so um when when you have new um when you have new realities in the marketplace it changes the economics it changes the decision-making um and it changes how products and services are built and brought to Market and so you know it's no surprise at least to me that some of the most significant antitrust cases in history came at times of major technological um inflection and so whether it was creation of factories and railroads uh during the Gilded Age in the industrialized economy or the Telecommunications um expansion that led to AT&T uh or the PC Revolution that led to Microsoft or now the internet Revolution that led to companies like Google um those are pivotal points and important inflection points where um and I trust important is perhaps more more important than ever or more necessary than ever to ensure that those markets remain competitive and that incumbents are't able to lock out rival and Innovative Technologies I think AI may present many of the same kinds of questions and challenges uh these are technologies that are built on massive data sets often um they are um we have to think about everything you know from the chip down to the end user and so whether there's consolidation in the hardware whether there's consolidation in the data sets whether there's consolidation in the software uh and then obviously how the tech technology is used and so if um algorithms and uh AI you know are are used to um uh set prices and to coordinate it may mean that a lot of things that we thought were once difficult to do um in the analog world in terms of price fixing and collusion can become automated and programmatic uh and widespread and so we have a lot to do to make sure we understand um those Technologies and to make sure that we are bringing the appropriate cases to ensure that that the law um which is often um made through uh Court litigating Court decisions has the opportunity to keep pace and we only have a little bit of time left but as AI becomes more front and center Microsoft has been striking deals with companies all over the world um to provide AI systems and you previously represented Microsoft as a lawyer does that present a conflict of interest as this becomes more of a Forefront issue for the Department of Justice so the department has has rigorous conflict of interest rules I adhere to them um and um uh but let me also take a step back to um I think anybody who knows me would understand that uh I am I believe very much in our mission I care deeply about antitrust enforcement we are hard at work enforcing the antitrust laws in every aspect of our economy um I'm now uh two and a half years uh uh plus into this position and I'm thrilled and um honored every day to work alongside um uh my my colleagues at the antitrust Division and I think that the work we're doing is incredible but but um if if I've been a um I think uh if you ask um uh any company in the ecosystem whether they think I'm going to be soft on anyone I I think the answer you know you'll get is that uh this antitrust division is as as tough as any we've seen in generations and I think that um I'm proud of that reputation and I'm proud of the work we're doing well unfortunately we're just about out of time and we'll have to leave it there thank you so much Jonathan for joining us today at post live thank you Cat it's great to be with you and thank all of you for joining us as well you can catch up on more of our Washington Post live programs at wash poost live thank you e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e

2024-05-11 23:38

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